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Save the Ozarks (STO) filed a response Tuesday in opposition to the American Electric Power (AEP)/Southwestern Electric Power Company (SWEPCO) motion to re-do its application for the Shipe Road to Kings River 345 kiloVolt transmission line.

STO attorney Mick Harrison said Arkansas Public Service Commission (APSC) rules specify that a party seeking to amend to conform a pleading to relevant testimony must show that the proposed amendment would be in the furtherance of justice, and must obtain the permission of the commission.

“SWEPCO’S motion should be denied because it would not be in the furtherance of justice to allow the amendments to conform SWEPCO’s application to the testimony (or documentary evidence) as requested by SWEPCO,” Harrison said. “It would also be arbitrary and capricious for the commission to allow such amendments of SWEPCO’s application under the circumstances here.”

The STO filing said that the amendment sought by SWEPCO would materially change the statement of need required by Arkansas law for an application for a Certificate of Environmental Compatibility and Public Need (CECPN) for a new major utility facility as noticed to the public.

“This SWEPCO failure to mail to landowners and agencies and publish public notice of its actual rationale for the asserted need for the new proposed major utility facility violates the statutory requirement for such notices,” Harrison said. “SWEPCO’s failure to properly and timely notice landowners and the public of the basis of need it is asserting as a justification for its application prejudices affected agencies, landowners, and the public generally all of whom are entitled to notice of the actual asserted basis of need before deciding whether to intervene or comment.

“The testimony (and associated documentary evidence) in question actually reflects an abandonment of the original basis of need asserted in the application and/or a concession that the original asserted basis of need was inadequate, and assertion of a new basis of need not noticed to the public. Certain parties may have chosen to intervene had they timely been made aware of the newly asserted basis of need. The public would have made materially different comments on SWEPCO’s assertion of need for the project had the public been timely noticed of the new post-hoc SWEPCO and SPP rationale for need.”

Harrison said if this proposed SWEPCO amendment of its application to conform to testimony is granted, the public will have been denied any meaningful opportunity to comment on whether need has been demonstrated, one of the central issues to be decided by the commission.

“This would be completely at odds with the public notice requirements of the controlling statute and the intention of the Arkansas Legislature that the public and affected landowners and agencies be given timely notice and a meaningful opportunity to comment to the commission and participate in commission proceedings on such applications for new major utility facilities,” he said.

Harrison said the testimony of expert witnesses for SWEPCO and Southern Power Pool (SPP) taken together reflect admissions by SWEPCO and SPP that the original statement of need was either based on incorrect facts, and/or inadequate to demonstrate need, and/or outdated, and that the newly asserted basis for need for the proposed 345kV transmission line is post hoc (i.e., developed after the application was submitted and after litigation before the commission had commenced and the original statement of need challenged by the intervenors).

“SWEPCO asserts in its motion that the testimony at the hearing on the issue need in question provided ‘significant additional facts’ that ‘supplement the written, pre-filed testimony’,” Harrison said. “However, this is not a situation where the testimony can be properly considered a ‘supplement’ to the pre-filed direct testimony SWEPCO submitted in support of its application. Here, the post hoc testimony of the three witnesses at issue asserts facts and circumstances materially different from those originally stated in the application and in SWEPCO’s pre-filed direct testimony in support of the application as the basis for the need for the new project. These newly asserted facts and circumstances and basis for need were not properly or timely noticed to the public, contrary to the requirements of the controlling Arkansas statute.”

Harrison said that if SWEPCO still wishes to pursue the proposed project on the basis of a different need rationale than stated in its originally noticed application, then SWEPCO should withdraw its current application and reapply to the commission, and properly provide notice to landowners, agencies, and the public of the new application containing the new asserted basis for need.

“Absent such a withdrawal of the application by SWEPCO, the testimony of the three SWEPCO and SPP witnesses referenced in SWEPCO’s motion, along with the remainder of the hearing record, provide a clear basis for denying SWEPCO’s current application on the basis of either an inadequate statement of need being included with the original application, in violation of the controlling statute, or in the alternative, if the amendment requested were granted, failure to properly notice the public, agencies, and landowners of the actual asserted basis of need, a critical part of the statutorily required application for a CECPN,” Harrison said.